UK Government block of gender reforms was legal, Court of Session rules

The decision follows the Section 35 ruling by Westminster earlier this year

The legislation was blocked by Westminster over concerns for reserved equality laws
Author: Molly TulettPublished 8th Dec 2023

The UK Government’s blocking of the controversial gender reforms has been ruled lawful in Scotland’s highest civil court.

The legislation would simplify the process for transgender people to obtain a gender recognition certificate (GRC) and officially change their gender.

However, the Gender Recognition Reform (Scotland) Bill was blocked from gaining royal assent earlier this year after Westminster issued a never-before-used Section 35 order of the Scotland Act, prompting a legal challenge by the Scottish Government.

In the ruling published today, Lady Haldane said: “The challenge to the Order pronounced under section 35 of the 1998 Act, laid on 17 January 2023, fails.”

Scottish Conservative deputy leader Meghan Gallacher said the decision was "humiliating"

Scottish Conservative deputy leader Meghan Gallacher MSP called the decision “humiliating” for the SNP, accusing them of having “squandered taxpayers’ cash on a self-serving but doomed court case”.

She added: “Their reckless Gender Recognition Reform Bill is deeply unpopular with the Scottish public because its self-ID principle compromises the safety of women and girls - as the case of a double-rapist being sent to a female prison demonstrated.

"In addition, the Bill impacted on equalities law south of the border, which is why the UK Government had no option but to issue a Section 35 Order.

"Rather than taking that as a cue to redraft their flawed Bill, the SNP dug their heels and turned an issue of women's safety into another constitutional grievance - a cynical tactic which has backfired today.”

Scottish Greens MSP Maggie Chapman is concerned about the impact on trans people and democracy

Scottish Greens MSP Maggie Chapman described the decision as a “devastating day for equality”.

She added: “It’s a democratic outrage, crushing basic human rights and equality for some of Scotland’s most vulnerable people.

“It shows the huge limitations and constraints on devolution and confirms the UK government refuses to see our trans siblings for the people they really are.

“It’s heartbreaking and it’s unjust and it makes a mockery of any vote or decision that we as parliamentarians at Holyrood take from now on, if the result is knowing that Westminster will veto anything they don’t like.

She continued: “I hope the Scottish Government will consider all options for appeal.”

The legislation received cross-party support in Holyrood last year, passing by 86 votes to 39 after MSPs considered 153 amendments to the Bill in a marathon parliamentary session.

"Unlawful" and "inconsistent"

Campaigners against the reforms warned the legislation could risk the safety of women and girls while supporters argued it would make the process easier, removing barriers such as seeking a doctor's diagnosis of gender dysphoria.

Representing the Scottish Ministers, Lord Advocate Dorothy Bain argued the order was used by Scottish Secretary Alister Jack because of a “policy disagreement”.

She said: "It is inconsistent with that basic constitutional structure which was enacted by the UK Parliament to recognise a broad and largely unfettered power to block the legislative choices of the Scottish Parliament."

The key argument put forward by David Johnston KC, acting on behalf of UK ministers, was that the policy could have an "adverse impact" on reserved equality legislation.

He argued the Lord Advocate's case of a policy disagreement was "simply irrelevant", adding Westminster "completely accepts that the Scottish Parliament is entitled to make its own legislation and that this is within its devolved power".

He said Mr Jack had "justified" grounds for using the order, stating it superseded or amended the 2004 Gender Recognition Act by altering the meaning of a GRC by removing the gender dysphoria diagnosis and lowering the application age to 16.

UK laws require applications to be aged 18 to apply for a GRC.

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